I. Substantial Burden Cases
a. Understanding the Jurisdictional Hook
The jurisdictional hook of a substantial burden component of RLUIPA applies when at least one of three jurisdictional tests are met: (1) the substantial burden is imposed in a federally funded program or activity; (2) the substantial burden affects, or removal of that burden would affect, interstate or foreign commerce; or (3) the substantial burden is imposed in the implementation of a land use regulation or system of regulations in which the government makes individualized assessments of the proposed uses for the property involved.6
This section contains two key phrases: land use regulation and individualized assessment. Congress defined land use regulation in RLUIPA as a "zoning or land marking law, or the application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest."7 Under this definition, a government entity or agency implements a land use regulation when it acts pursuant to a zoning law that limits the manner in which a claimant may develop or use property in which the claimant has an interest.8 With respect to the definition of individualized assessment, several circuits have established that zoning ordinances by their nature impose individual assessment regimes.9 For this reason, the most common jurisdictional hook under which substantial burden claims are asserted is the individualized assessment component.
b. Substantial Burden—Determining the Religious Use
In order to affirm a religious use under RLUIPA, the court is limited to determining if the claimant has a "sincere religious belief."10 The U.S. Supreme Court affirmed this principle in United States v. Seeger (1965),11 concluding:
The validity of what [plaintiff] believes cannot be questioned. Some theologians, and indeed some examiners, might be tempted to question the existence of the registrant's "Supreme Being" or the truth of his concepts. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be "incomprehensible to others." Local boards and courts in this sense are not free to reject beliefs because they consider them "incomprehensible." Their task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.12
Therefore, it is clear that only personal practices that are both sincerely held and rooted in religious belief fall under the protections of the Free Exercise Clause or RLUIPA.13 To warrant protection under the Constitution and RLUIPA, the belief need not be mandated by a particular, established religion or held by a majority of the believers within a religion.14 Moreover, "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."15 Nevertheless, not all belief systems denote religion.
In Conner v. Tilton,16 the court was concerned with whether the plaintiff's beliefs qualified as a "religion" under RLUIPA. Conner was a prisoner who was engaged in "Creativity," a racist organization.17 Based on his membership with that organization, he was denied certain practices by the prison staff and prison chaplain.18 Accordingly, Conner filed RLUIPA and First Amendment claims presenting the Court with the question as whether the particular philosophical beliefs raised by Conner in fact qualified as a "religion."19
In a lengthy analysis, the court found that Creativity was not a religion.20 Since "only beliefs rooted in religion are protected by the free exercise clause, which by its terms gives special protection to the exercise of religion,"21 Conner was required to present evidence that his beliefs were sincerely held and that his claims were rooted in religious belief, rather than in purely secular, philosophical concerns.22 After determining that Conner's beliefs were sincerely held, the court analyzed whether Creativity qualified as a religion for purposes of the First Amendment under RLUIPA. In applying the Third Circuit's test from Africa v. Pennsylvania,23 the court looked to three criteria to assist in determining whether a set of beliefs was religious:
First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief system as opposed to isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.24
The Africa court also explained that courts must take a "definition by analogy" approach and look to the "familiar religions" as a means of ascertaining whether a new set of beliefs serves the same sorts of purposes as accepted religions.25
In applying the Africa factors to Conner's case, the court found that Creativity did not qualify as a religion for purposes of RLUIPA.26 "Creativity's overarching concern is with a credo that addresses personal, social and moral questions, as set forth in its ultimate goal of 'a sound mind in a sound body in a sound society in a sound environment' . . . as well as in Creativity's Sixteen Commandments, and, in particular, Commandment IV, which states: 'The guiding principle of all your actions shall be: What is best for the White Race?' Thus, Creativity's belief system, like those of MOVE, the Church of Marijuana, the Church of Saint Dennis, veganism, and the Church of Universology, is guided exclusively by secular concerns."27
Another California case, this time before the Ninth Circuit, also implicated the institutionalized-persons portion of RLUIPA to determine the meaning of "religious exercise." In Greene v. Solano County Jail,28 the Ninth Circuit Court of Appeals made an interesting interpretation of the phrase "religious exercise" under RLUIPA. Greene was housed in the maximum-security area at the Claybank jail for approximately three months, awaiting trial on charges of terrorist threats and false imprisonment.29 While at the jail, Greene was denied the ability to participate in group worship, based on his being a maximum-security prisoner, but was allowed to visit with a chaplain and was given a Bible and a copy of a religious periodical.30 Greene filed suit, alleging that the refusal to allow him and other maximum-security prisoners to participate in group religious worship violated his rights.31 The jail moved for summary judgment, which the district court granted.32
In reviewing his claim, the Ninth Circuit determined that RLUIPA's plain language and its own precedent compelled the conclusion that "religious exercise" includes "group worship" and does not solely include Christianity.33 In considering whether a compelling governmental interest justified the ban on Greene's religious activity, the court concluded that the jail's policy that prohibited Greene from attending group religious service imposed a substantial burden under RLUIPA on his ability to exercise his religion.34 The court also noted that the jail's policy in precluding maximum-security prisoners from participating in group worship served the compelling governmental interest of maintaining prison security.35 However, there remained a genuine issue of material fact remained as to whether a complete ban on religious worship among maximum-security prisoners constitutes the least restrictive means of maintaining jail security.36 Therefore, the case was sent back to district court for further proceedings.37
Religious exercise is thus more than subscribing to some sort of belief system. But it is also something more than activity with a mere attenuated link to religious practice. In Glenside Center, Inc. v. Abington Township Zoning Hearing Board,38 a Pennsylvania state court held that holding Alcoholics Anonymous (AA) meetings did not qualify as a religious use of an office building. In Glenside Center, AA meetings were being held inside an office building, in violation of the local zoning ordinance.39 When Glenside learned that its use of the office building was not permitted within that particular zone, it appealed the decision to the local zoning board of appeals.40 The board rejected Glenside's argument that the AA meetings were a religious exercise and denied Glenside's request for a variance.41 Glenside then appealed the board's decision to Pennsylvania state court, arguing that the building was used for offices in addition to AA meetings and therefore a variance was not needed. Glenside also argued that the zoning infraction violated RLUIPA based upon the religious nature of AA.42
Regrettably for the building owner, its representative testified at the local hearings that Glenside was not a religious organization and none of the meetings were held by a minister, priest, rabbi, or any other religious leader. Second, the AA materials specified that AA was not a religious organization, no fees were paid to any religious organization, and Glenside's incorporation papers made no mention of the entity's purpose being for religious exercise. Finally, there were no religious services, no endorsement, no connection with any religious group, and no affiliation with any other religious organizations.43 Glenside claimed that AA's 12-step program was spiritual, and that a New York Court of Appeals had found an AA meeting to be an exercise of religion in the past.44 Nonetheless, advancing religion was not the organization's "primary purpose" and, not surprisingly, the court held that no religious exercise took place in the building at the AA meetings and thus RLUIPA did not apply "because the group meetings are for the purpose of treating addictions and not for exercising religion, no matter what the religion is."45
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